Lamm v. Barber

• Decision Date: 04 March 1977
• Docket Number: No. 27448,27448
• Citation: 565 P.2d 538,192 Colo. 511
• Parties: Governor Richard LAMM et al., Petitioners, v. Ray BARBER, Clear Creek County Assessor, et al., Respondents.
• Court: Colorado Supreme Court

Page 538

565 P.2d 538

192 Colo. 511

Governor Richard LAMM et al., Petitioners, v. Ray BARBER, Clear Creek County Assessor, et al., Respondents.

No. 27448.

Supreme Court of Colorado, En Banc.

March 4, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Stephen H. Kaplan, Asst. Atty. Gen., Denver, for petitioners.

Gerald D. Hartert, Kenneth T. Johnson, Jr., Glenwood Springs, for respondents Eugene Drinkhouse and Ray Barber.

Ernest U. Sandoval, Luis Lopez, Dist. Atty., Trinidad, Third Judicial District, for respondent Fred Fernandez.

Robert Dunlap, Colorado Springs, for amici curiae Paul Norbert Larson and Connie Lee Larson.

CARRIGAN, Justice.

The respondents, three county assessors, have refused to implement increases in their respective assessment abstracts as ordered by the State Board of Equalization (hereinafter referred to as State Board). The State Board, as petitioners, seek enforcement of that order in this original proceeding. We issued a rule to show cause why mandamus should not issue to compel the respondents to effectuate the ordered increases. We now make the rule absolute.

The state constitution provides:

"As may be provided by law, the state board of equalization shall review the valuations determined for assessment of taxes upon the various classes of real and personal property located in the several counties of the state, and shall raise, lower and adjust the same, to the end that all valuations for assessment of taxes shall be just and equalized; provided, however, that said state board of equalization shall have no power of original assessment." Colo. Const. Art. X, Sec. 15.

The state constitution further requires the State Board of Equalization to "perform such other duties as may be prescribed by law." Id.

In an apparent effort to achieve in one year statewide equalization of property assessments at approximately 22 per cent of actual value, the General Assembly enacted a statute, which took effect June 10, 1976, providing in part:

"39-9-103. Duties of board enforcement.

(5)(a) For abstracts of assessment certified to the state board of equalization in 1976, the state board of equalization shall determine whether the aggregate valuation for assessment for any class or subclass of agricultural building improvements or residential improved or unimproved property or commercial improved or unimproved property or industrial improved or unimproved property is lower than or exceeds twenty-two percent of actual value.

(II) The state board of equalization shall order an increase or a decrease in the aggregate valuation for assessment of any class or subclass of agricultural building improvements or residential improved or unimproved property which is more than two percentage points above or below twenty-two percent of actual value so that such valuation equals twenty-two percent of actual value. The state board of equalization shall order an increase or a decrease in the aggregate valuation for assessment of any class or subclass of commercial improved or unimproved property or industrial improved or unimproved property which is more than three percentage points above or two percentage points below twenty-two percent of actual value so that such valuation equals twenty-two percent of actual value. If the aggregate valuation for assessment of any classes or subclasses of property specified in this subparagraph (II), in any abstract of assessment certified in 1976, is within the range of percentage points specified for such respective classes or subclasses of property, the same shall be deemed to comply with the requirements of law and shall not be increased or decreased.

(III) Any reduction ordered by the state board of equalization may be applied by the assessor proportionately to each property within such class or subclass. Any increase ordered by the state board of equalization shall be achieved by the assessor only by changes to individual valuations for assessments of property within such class or subclass. . . . It is the intent of the general assembly in enacting this paragraph (b), to modify for one year only the percentage relationship in the assessment of the specified properties and only for the purpose of the actions of the state board of equalization pursuant to this subsection (5). It is the intent of the general assembly to preserve in the future the equal percentage of assessment for such classes and subclasses of property. Effective January 1, 1977, paragraphs (a) and (b) of this subsection (5) are repealed " (emphasis added). Colo.Sess.Laws 1976, ch. 154, § 39-9-103 at 763-64 (hereinafter sometimes referred to as the 1976 Act). Section 39-9-103(5) (1976 Supp.).

The 1976 Act explicitly defined the term "actual value." See Colo.Sess.Laws 1976, ch. 154, section 39-9-103(5)(b)(I) at 764. Pursuant to this statutory mandate, and after complying with the required procedures, ¹ the State Board held hearings and ordered 45 county assessors to adjust their respective aggregate assessment valuations. Forty-two assessors apparently complied, but the three respondents did not.

The State Board made a finding of fact that the respondent assessors were not in compliance with its order. The respondents admit the correctness of this finding that they have not obeyed or implemented the State Board's order and assert that they do not intend to comply unless so ordered by this court. ² To justify their refusal to carry out the State Board's order, they challenge the constitutionality of the above-quoted 1976 Act and the State Board's action pursuant to that Act.

I. Propriety of Mandamus Remedy.

The respondent assessors, while not contesting this court's authority or original jurisdiction to issue writs in the nature of mandamus, ³ contend that mandamus is inappropriate here. First, they argue that the action sought to be compelled is discretionary and that mandamus may not be used to compel the exercise of discretion.

Prior to the 1976 Act, ⁴ county assessors were required to accomplish any State Board ordered increases in assessed valuations by making horizontal increases in the assessments of all properties. The respondents admit that their obligation under that prior act involved no discretion. The 1976 amendment, however, required increases in assessed valuations to be accomplished only by reassessing individual properties. ⁵ Respondent assessors claim that this provision grants them discretion which cannot be directed by a writ of mandamus.

Mandamus is an appropriate remedy where there has been a failure to perform a statutory duty. County Commissioners v. Edwards, 171 Colo. 499, 468 P.2d 857 (1970); see Tasher v. Trentaz, 165 Colo. 97, 437 P.2d 529 (1968). A writ of mandamus, however, may not direct how discretion is to be exercised. People ex rel. Griffith v. Bundy, 107 Colo. 102, 109 P.2d 261 (1940) (canvassing of votes); State ex rel. Holmes v. Peck, 92 Colo. 224, 19 P.2d 217 (1933) (certification of sufficiency of a petition); Lindsey v. Carlton, 44 Colo. 42, 96 P. 997 (1908) (county court's discretion in divorce proceeding); Orman v. People, 18 Colo.App. 302, 71 P. 430 (1903) (canvassing of votes). Nevertheless, officials in whom the law has vested a duty involving discretion may be required by mandamus to exercise that discretion. Thus, while "courts will not, by mandamus, direct the manner in which the discretion of an officer shall be exercised," they "will direct an officer to proceed and exercise the discretion vested in him by law." People v. McNichols, 91 Colo. 141, 143, 13 P.2d 266, 267 (1932) (duty to make an audit) (emphasis added). See Van DeVegt v. Board of County Commissioners,98 Colo. 161, 55 P.2d 703 (1936) (duty to consider granting a liquor license); State Board of Corrections v. Denver, 61 Colo. 266, 156 P. 1100 (1916) (duty to consider caring for insane person in state hospital); People ex rel. Pettingell v. Grand County Commissioners, 53 Colo. 494, 127 P. 960 (1912) (duty to consider repairing bridge).

In the present case, the State Board has sought a writ of mandamus only to compel the respondent assessors to perform their statutory duty to increase the aggregate assessments of their respective counties. Statutes in effect for many years have imposed on county assessors a clear duty to obey such an order from the State Board. Sections 39-5-127, ⁶ 39-9-107, ⁷ C.R.S.1973. There is no attempt through this mandamus action to direct the respondents how to exercise their discretion in performing their statutory duty. The discretionary aspects of the assessors' duties, therefore, would not be impeded by the issuance of a writ compelling them to exercise their discretion.

Secondly, the respondent assessors claim that mandamus is inappropriate here because the statute and State Board orders are vague, ambiguous, and fail to provide adequate guidelines for the required reassessments to increase aggregate valuations. In support of this contention, the respondents argue that Colo.Sess.Laws 1976, ch. 154, 39-9-103(5)(b)(III) at 764 expressly deprives them of the normal assessment guidelines contained in Articles 1 to 13, Title 39, C.R.S.1973.

Our reading of the 1976 Act leads us to reject the respondents' interpretation. The statute must be read and considered as a whole to ascertain the intent of the General Assembly. See Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). Thus the 1976 amendment must be read, not in a vacuum, but in the context of the entire preexisting statutory assessment scheme. Zaba v. Motor Vehicle Division, 183 Colo. 335, 516 P.2d 634 (1973). If possible, a statute should be construed to accomplish the purpose for which it was enacted. The construction suggested by the respondents is illogical and would deprive the statute of its effectiveness.

We interpret the 1976 Act as leaving intact all the normal, preexisting guidelines provided for assessment, and these guidelines, in...